Citation Nr: 1141621
Decision Date: 11/09/11 Archive Date: 11/21/11
DOCKET NO. 08-24 037 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Oakland, California
THE ISSUES
1. Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as secondary to a service-connected left tibia fracture.
2. Entitlement to service connection for right knee disorder, including degenerative joint disease, claimed as secondary to a service-connected left tibia fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
Appellant (the Veteran) had active service from October 1983 to October 1987.
This appeal comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the RO in Oakland, California.
FINDINGS OF FACT
1. All notification and development action needed to fairly adjudicate the appeal has been accomplished.
2. The Veteran did not engage in combat with the enemy.
3. The Veteran's current degenerative disc disease of the lumbar spine is related to his service-connected left tibia fracture.
4. The Veteran does not have a right knee disability, including degenerative joint disease of the right knee.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in the Veteran's favor, degenerative disc disease of the lumbar spine is proximately due to or a result of the service-connected left tibia fracture. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2011).
2. The criteria for service connection for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.14 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008).
The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
As the Board is granting the claim for service connection for degenerative disc disease of the lumbar spine, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).
In a February 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for degenerative joint disease of the right knee, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. Notice provided in June 2006 included provisions for disability ratings and for the effective date of the claim.
The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, private treatment records from Kaiser-Permanente, and the Veteran's written assertions regarding his claim.
The Board acknowledges that, while the Veteran has been afforded VA medical examinations with respect to his complaints of right knee and leg pain, a medical opinion has not been obtained specifically addressing degenerative joint disease of the right knee. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006).
The Board finds that a VA examination is not necessary in this case in order to decide this claim for service connection for right knee disorder because there is sufficient competent medical evidence on file to make a decision on the claim. For the reasons explained in this decision, the competent medical evidence includes X-ray evidence demonstrating no degenerative joint disease of the right knee. There is also competent medical evidence that attributes the Veteran's right knee complaints to neurological abnormalities associated with his low back disability, for which service connection is being granted in this Board decision. According to the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities are to be considered and rated separately, under an appropriate diagnostic code. That matter will be considered by the RO when the initial rating is assigned for the service-connected low back disability, and is not before the Board on appeal. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided).
Because there is no current disability of the right knee that is not already part of a service-connected disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for degenerative joint disease of the right knee. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim").
General Criteria for Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A.
§ 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
Analysis of Service Connection for
Degenerative Disc Disease of the Lumbar Spine
The Veteran attributes degenerative disc disease of the lumbar spine to his service-connected left tibia fracture. Service treatment records reveal that the Veteran sustained multiple injuries to the left leg resulting from a motorcycle accident in service in May 1986. The Veteran attributes his low back symptoms to an alteration in gait resulting from the service-connected left leg injuries.
Here, there is no dispute as to two of the elements necessary for service connection on a secondary basis. The Veteran has degenerative disc disease of the lumbar spine, as shown by MRI in April 2007; and, the Veteran has a service-connected left tibia fracture, as well as service-connected left knee and ankle injuries, and a left sciatic nerve injury resulting from a bone graft. The question remaining to be determined by the Board is whether there is an etiological relationship between the multiple service-connected left lower extremity disabilities and the low back disability.
After a review of the evidence, the Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran's degenerative disc disease of the lumbar spine is proximately due to or a result of his left tibia fracture; however, the Board acknowledges a conflict in the opinion evidence on this question. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1).
The report of VA examination in March 2008 reveals the Veteran's report that he started experiencing low back pain after discharge from service in 1987-88, and that it has gradually gotten worse. The examiner diagnosed chronic lumbosacral strain with mild degenerative changes and right leg radiculopathy. The examiner opined that, according to the medical literature, chronic lumbosacral strain is caused by multiple factors. The Veteran had been experiencing low back pain since his discharge from service. He is not noted with any continuity or chronicity of the pain in the given c-file. Based on the current evidence and the review of the literature, it is less likely as not that the Veteran's current lumbosacral strain is secondary to his service-connected left tibiofibular fracture.
The Veteran submitted the opinion of his private physician, A.H., M.D., dated in May 2007. A.H. opined that the Veteran's service-connected left tibia fracture injury and residuals has caused compensatory damage in the lumbosacral spine that is ongoing. A.H. noted that the Veteran has a grade I-II limp due to service-connected disability in the left lower extremity. According to A.H., this, by the nature of simple physics, has caused the slight malalignment of the low spine, causing compression of the intervertebral disc, causing it to become eccentric to the right side of the L4-5 neural foramina, causing chronic sciatica. A.H. clarified that this is not the same as the sciatica that is described in the cause of clawing of the toes of the left foot secondary to this catastrophic fracture of the left tibia-fibula. This is an apparent reference to the fact that the Veteran is separately service connected for left sciatic nerve injury which is a residual of surgery performed on his left leg during service.
In this case, the Board finds the opinion of A.H. to be better reasoned and more consistent with the other evidence than the opinion of the VA examiner. Essentially, while the VA examiner indicated that he was providing a rationale, this was essentially a restatement of the opinion without explanation. More significant, the VA examiner noted contradictory evidence and then did not resolve the contradiction. He noted that the Veteran reported experiencing low back pain since his discharge from service, but in the next sentence reported that there was no continuity or chronicity of the pain in the given c-file. The only reasonable interpretation of this discrepancy is that he acknowledged the Veteran's report of continuous symptoms, but either did not believe him or did not find it significant.
In either case, the VA examiner did not address the question directly. In fact, a review of the service records reveals a September 1987 physical therapy report, which is some 16 months after the motorcycle accident (May 1986), notes low back pain secondary to favoring the left knee/ankle. While this may not be enough to establish chronicity of low back symptoms in service, it supports the Veteran's assertion that he has experienced low back pain continuously or near-continuously since service. The VA examiner did not discuss or acknowledge this report.
On the other hand, the opinion of A.H. is consistent with this early report of back symptomatology, and is consistent with the Veteran's competent assertion that he has experienced back symptoms continuously since service. It is also further evidence of a nexus between the back symptoms and the service-connected left leg injury. The opinion of A.H. is well reasoned and directly addresses the question at hand.
The opinion of A.H., at the very least, brings the evidence for and against the claim into approximate balance. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that degenerative disc disease of the lumbar spine is related to the service-connected left tibia fracture, and that service connection for degenerative disc disease of the lumbar spine is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Analysis of Service Connection for
Degenerative Joint Disease of the Right Knee
The Veteran asserts that he has degenerative joint disease of the right knee, and that this is secondary to his service-connected left tibia fracture. Service treatment records reveal that the Veteran sustained multiple injuries to the left leg resulting from a motorcycle accident in service in May 1986. The Veteran attributes his right knee symptoms to an alteration in gait resulting from the service-connected left leg injuries.
After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a right knee disability, including degenerative joint disease of the right knee. X-rays taken in August 2005 and July 2006 were unremarkable, with no significant degenerative changes noted. While the Veteran has consistently reported pain in his right knee, and his reports of pain are competent evidence, he is not competent to diagnose degenerative joint disease or to attribute his knee pain to a particular pathology, particularly in a case, such as this, where there was no discrete injury to the knee, and where onset of symptoms was gradual. The clinical evidence in this case supports his report of right knee pain, but attributes such symptoms to radiculopathy related to his low back disability. In particular, a March 2008 VA examination report reveals that the Veteran's report of pain and burning in his right lower extremity and knee were attributed to a diagnosis of right leg radiculopathy. The Veteran's private physician A.H. also diagnosed right sciatica. The Board acknowledges a notation in a July 2006 internal medicine follow up that the Veteran was wearing a metal right knee brace; however, the report contained no diagnosis of disability for the right knee.
The Board recognizes that the CAVC has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Based on the evidence demonstrating that the Veteran's right knee pain is attributable to the already service-connected low back disability, and establishing that there is no separately diagnosed right knee disability, including degenerative joint disease of the right knee, the Board finds that service connection for degenerative joint disease of the right knee is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.
ORDER
Service connection for degenerative disc disease of the lumbar spine is granted.
Service connection for a right knee disability, including degenerative joint disease of the right knee, is denied.
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J. Parker
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs